Court of Appeal for Ontario
Date: 2025-07-24
Docket: COA-24-CR-0021
Coram: Fairburn A.C.J.O., Paciocco and Harvison Young JJ.A.
Between:
His Majesty the King, Appellant
and
Elijah Gilmore-Bent, Respondent
Appearances:
Samuel G. Walker, for the appellant
Breana Vandebeek and Alexandra Youssef, for the respondent
Heard: 2025-04-15
On appeal from the stay of proceedings entered by Justice Jennifer K. Penman of the Superior Court of Justice on December 12, 2023, with reasons at 2024 ONSC 199.
Paciocco J.A.
A. Overview
[1] The Crown had a strong case against Elijah Gilmore-Bent on serious weapons-related and breach of bail charges after he was arrested on March 24, 2022, in possession of a loaded and prohibited .45 calibre handgun. The trial judge stayed those charges after finding that a correctional officer, Officer Warburton, violated Mr. Gilmore-Bent’s Charter rights by using excessive force against him when the officer gratuitously sprayed Mr. Gilmore-Bent with pepper spray while he was in custody awaiting trial.
[2] The trial judge found, as well, that correctional officers who were present when Mr. Gilmore-Bent was pepper sprayed prepared false Use of Force reports to justify Officer Warburton’s actions. She found that some of them colluded to do so, and that others at least discussed the event to support Officer Warburton. She further found that a duty sergeant signed off on those reports notwithstanding that security video clearly contradicted the claims contained in the reports, and that Mr. Gilmore-Bent was unjustifiably punished for his “misconduct” with 15 days in segregation. And she found that several of the correctional officers who testified before her intentionally provided misleading evidence about what happened.
[3] She concluded that these events exposed a systemic problem and she elected to stay the charges to remedy the prejudice that proceeding with the trial would cause to the integrity of the justice system.
[4] The Crown appeals the stay of proceedings, arguing that the decision to stay the charges was based on factual and legal errors. As I will explain below, I would deny the appeal.
[5] I recognize that there is room for disagreement relating to some of the material factual findings made by the trial judge. But her conclusions rested in credibility determinations that she was entitled to make, and in an evaluation of the security video evidence that was open to her as the designated fact finder. I do not accept that she erred by failing to view the circumstances objectively from Officer Warburton’s perspective, or that she failed to turn her mind to the difficult circumstances that Officer Warburton found himself in. She engaged in the proper inquiries. In my view, we are obliged to defer to the factual findings that she made.
[6] I also disagree that the trial judge based her decision to stay the charges on unsupported systemic findings about the entire culture at the Toronto East Detention Centre. When read in context, her material findings relate only to the systemic conduct of officers working together in the case that was before her to suppress evidence of an illegal assault against an inmate, committed by one of their own. That characterization of the events was hers to make.
[7] The trial judge did not misapply the legal test for a stay of proceedings but gave careful regard to the requisite legal standards. While others may not have adjudged the balance of interests in the same way she did, the trial judge’s decision is correctly reasoned and therefore entitled to deference.
[8] I recognize and reinforce that correctional officers are entitled to deploy pepper spray when they reasonably believe that lawful force is necessary, and the use of the pepper spray constitutes only as much force as is necessary in the circumstances. The reasonableness of their actions must be judged with full appreciation of the dangerous circumstances they are in and with sensitivity to the reality that officers will often have to react quickly in stressful circumstances, without the benefit of reflection. I also reaffirm that perfection is not required. Correctional officers are entitled to be reasonably mistaken about the need to resort to force.
[9] But the trial judge foreclosed reasonable mistake by Officer Warburton because she was persuaded that he assaulted Mr. Gilmore-Bent out of anger and frustration, and not because he believed the force he used was necessary and authorized by law. Her findings in this regard are grounded in the evidence and are not unreasonable. There is no basis to intervene.
B. Material Facts
[10] On November 21, 2022, while Mr. Gilmore-Bent was in custody awaiting trial at the Toronto East Detention Centre, another inmate, “Inmate B”, punched Officer Warburton in the face as the officer was placing Inmate B into his cell. This assault against Officer Warburton occurred after he and another officer, Officer Akhtar, directed Inmate B, Mr. Gilmore-Bent, and another inmate into their cells in this maximum-security wing of the detention centre. Almost all material events were captured on security video, albeit without audio.
[11] The security video shows Mr. Gilmore-Bent moving towards Inmate B’s cell as the two officers escort Inmate B into his cell before Inmate B strikes Officer Warburton. The video also shows Mr. Gilmore-Bent hovering nearby and twice stepping towards the altercation that followed before being ordered back by Officer Warburton, as Officer Akhtar gained control over Inmate B. On each occasion, Mr. Gilmore-Bent did as he was directed. At some point, Officer Warburton signalled a “code blue”, which marshalled other officers to assist. As Inmate B’s cell door was about to close, Officer Warburton sprayed pepper spray into Inmate B’s cell.
[12] Officers Akhtar and Warburton then attended to Inmate C and uneventfully locked him in his cell, which was next to Mr. Gilmore-Bent’s cell. While this was happening, Mr. Gilmore-Bent, who had been pacing around the area, approached his own cell door. Officer Akhtar held his arm out in front of Mr. Gilmore-Bent when Mr. Gilmore-Bent was near the entrance. By this time, additional correctional officers were rushing into the cellblock area in response to the code blue. Officer Warburton unlocked and opened Mr. Gilmore-Bent’s cell door. To get into his cell, Mr. Gilmore-Bent had to walk from the side of the open cell door and turn into the cell. As he moved from the side of the open cell door in the direction of both Officer Warburton and the opening, Officer Warburton, who was still holding the cannister of pepper spray, sprayed Mr. Gilmore-Bent directly into his face and continued to spray him as he moved into his cell, and until the door was closed. This happened quickly. Officer Warburton sprayed Mr. Gilmore-Bent for two to three seconds.
[13] When Mr. Gilmore-Bent’s trial arrived, he brought a pre-trial motion seeking a stay of proceedings pursuant to s. 24(1) of the Canadian Charter of Rights and Freedoms, arguing that Officer Warburton used excessive force by gratuitously pepper spraying him, thereby violating his constitutional rights, contrary to ss. 7 and 12 of the Charter. He also argued that correctional officers misconducted themselves by attempting to cover up what had happened, including by collaborating in filing false Use of Force reports.
[14] Mr. Gilmore-Bent gave evidence during the Charter voir dire. He testified that when he approached Inmate B’s cell, he was attempting to retrieve belongings he had left in Inmate B’s cell and did not know that Inmate B would strike Officer Warburton. He said that he was not attempting to provoke or intimidate the officers when he subsequently stepped forward, explaining that he did so because he was concerned that Inmate B was going to be harmed. He said he backed up when instructed to do so. However, he acknowledged that he “would have intervened” if they tried “to beat [Inmate B] ‘cause I seen these type of things”, but this did not occur so he “disincluded [himself] from the situation.”
[15] Mr. Gilmore-Bent testified that he subsequently walked up to his cell door because he wanted to get back into his cell, but the cell door was still locked. He said the officers walked by him and turned their backs to him as they put Inmate C into his cell. He denied being pushed back by Officer Akhtar’s arm when the officer subsequently held it in front of him as he stood near his cell door, and he denied threatening officers or making a move towards Officer Warburton. He said he was not looking at Officer Warburton but instead at the officers coming onto the unit. He testified that when his cell door opened, he stepped forward to enter his cell but was pepper sprayed in the face by Officer Warburton before he could turn into the cell. He said that as he was being sprayed, he rushed to the back of his cell in excruciating pain. He denied then turning around and attempting to leave the cell.
[16] Mr. Gilmore-Bent described being left unattended while attempting to rinse his face and eyes with toilet water and milk, despite his pleas for help, until he was finally taken to the shower after a long delay. His cell and bedding still had pepper spray on them when he was returned to his cell and were not cleaned.
[17] The trial judge accepted Mr. Gilmore-Bent’s testimony. She found that he had “testified in an honest and straightforward manner”, was “forthright” and “did not try to exaggerate or minimize his actions.” She also concluded that his account found support in the security video. Although the security camera did not capture events inside of Mr. Gilmore-Bent’s cell, it shows him rushing into the cell as he is being sprayed. The video also supported Mr. Gilmore-Bent’s account that he did not turn around in his cell and try to charge back out. The trial judge noted that “the entranceway is visible” in one of the security videos and that after Mr. Gilmore-Bent rushed into his cell he is “never at the entranceway to the cell.”
[18] The trial judge found that although Mr. Gilmore-Bent was wrong about the length of the delay before his decontamination, his account of the decontamination was confirmed by the testimony of the officer who escorted him to be decontaminated. She also accepted Mr. Gilmore-Bent’s testimony that he was “placed on a misconduct and put in segregation for fifteen days.”
[19] In contrast, the trial judge found significant credibility problems with the testimony given by Officer Warburton, who was called by the Crown. She explicitly rejected the heart of what he said. She found that Officer Warburton testified that he repeatedly told Mr. Gilmore-Bent to get into his cell, despite the impossibility of compliance because the cell door was locked, “to create the impression that Mr. Gilmore-Bent was not complying with the officers’ demands.” She concluded that his claim that he felt threatened at the cell door because Mr. Gilmore-Bent was staring at his chest and had clenched fists was contradicted by the security video, which shows Mr. Gilmore-Bent looking towards the officers coming into the unit without clenched fists. She interpreted Officer Warburton as testifying that Mr. Gilmore-Bent was “charging” towards him when he deployed the pepper spray but found that on a “careful review of the video” Mr. Gilmore-Bent was not doing so. In her view, he was simply moving forward so that he could get into his cell. She said, “I do not accept that Officer Warburton had an honest belief that Mr. Gilmore-Bent was about to ‘charge’ at or ‘attack him’” and she found that he was “agitated and angry and was unable to control his behaviour”.
[20] In his use of force report, Officer Warburton included the following account:
I had to tell I/M Gilmore-Bent several times during the escort to go towards his respective cell. Once I/M Gilmore-Bent entered cell #4308 I saw him move towards me. I believed Gilmore-Bent was about to attack me so I sprayed the OC foam towards his face area, and CO Akhtar secured the cell #4308 door.
The trial judge found this account to be “obviously untrue”, noting that Mr. Gilmore-Bent was not in his cell when he was pepper sprayed. She also noted that Officer Warburton would not agree during his testimony that the report was inaccurate, engaging in what she found to be a “disingenuous” attempt to distance himself from the words of the report by insisting that Mr. Gilmore-Bent was at the entrance of the cell area when he was sprayed. She disbelieved his claim that Mr. Gilmore-Bent had turned around at the entranceway to the cell and made a movement towards him when he sprayed into the cell. The trial judge found this account to be contradicted by the video and implausible. And she relied on his conduct and his body language to reject Officer Warburton’s testimonial denial that he was angry. She said:
I find Officer Warburton both in his Use of Force report and in his testimony before me tried to dishonestly paint a picture that would justify his use of the pepper spray. I find that this attempt by Officer Warburton to create a version of events that would justify his actions demonstrates that he knew what he had done was wrong.
[21] All four of the other correctional officers who were present during the pepper spraying and who testified said that Mr. Gilmore-Bent either “charged”, “lunged”, “moved towards”, or attempted “to rush” Officer Warburton before he was pepper sprayed. The trial judge found based on her review of the security videos that Mr. Gilmore-Bent “did not lunge, charge at, or take an aggressive step towards Officer Warburton.”
[22] Just as Officer Warburton had done, Officers Akhtar and Blainey inaccurately described Mr. Gilmore-Bent as inside the cell and then charging or rushing the door before the pepper sprayed was deployed.
[23] The trial judge also noted that Officer McGrath’s Use of Force report inaccurately described Mr. Gilmore-Bent not only as having “lunged” at Officer Warburton before he was sprayed, but, like Officer Warburton, he also described Mr. Gilmore-Bent as refusing to go to his cell. After viewing the videos in the light of the testimony, she found, “[t]here was no indication that Mr. Gilmore-Bent was not complying with the instruction to enter his cell”.
[24] Sergeant Kamran who was duty sergeant on November 21, 2022, gave evidence that was unhelpful to the Crown. He reviewed and signed off on the Use of Force reports, and initially testified that he did so while reviewing the video footage and without following up with any of the officers. When the reports of Officers Warburton, Akhtar and Blainey were compared to the video during his cross-examination, he agreed that their Use of Force reports were not accurate and testified that he must not have been paying attention. He acknowledged that he “failed in his duty in ensuring that the officers were truthful in their reports.”
[25] After reviewing the evidence, the trial judge said:
Having considered all the evidence, I am satisfied that Officer Warburton’s deployment of the pepper spray into Mr. Gilmore-Bent’s face was an excessive and unnecessary use of force. I also find that the continuous deployment of the pepper spray on the back of Mr. Gilmore-Bent into the cell was gratuitous. Officer Warburton was angry, understandably so, about having been punched in the face and was unable to control his behaviour when dealing with Mr. Gilmore-Bent. I am satisfied that Officer Warburton’s use of the pepper spray on Mr. Gilmore-Bent was gratuitous, borne out of anger, and not reasonable.
[26] She also found that all the Use of Force reports were intentionally designed to give the inaccurate impression that Mr. Gilmore-Bent was about to attack Officer Warburton. She said that “[i]t defies coincidence that all the officers would coincidentally happen to have the same general description in their reports”. And she found it “very suspicious” that Officers Warburton, Akhtar and Blainey “all make the same mistake in their reports” about Mr. Gilmore-Bent being “inside his cell when the pepper spray was deployed” when this was “so obviously wrong.” She found that each of these three correctional officers gave evidence designed to mislead the court “not just about the event itself, but what took place in the writing of the reports.” She then continued, “I am satisfied that several of the officers colluded or at a minimum discussed their reports with other officers with a view to supporting Officer Warburton.” I also find that they then misled the court with respect to this conduct.
[27] The trial judge said that she was satisfied on a balance of probabilities that “there has been a violation of Mr. Gilmore-Bent’s rights under s. 7 and 12 of the Charter.” She then determined that a stay of proceedings was the appropriate remedy.
C. Issues
[28] The grounds of appeal raised by the Crown include challenges to the trial judge’s factual findings, which I will address first before turning to the Crown’s legal arguments. I would state the grounds of appeal as follows:
- Did the trial judge err in finding that the officers had colluded?
- Did the trial judge misapprehend Officer Warburton’s use of the term “charging”?
- Did the trial judge err in finding that the force was excessive by failing to consider Officer Warburton’s perspective?
- Did the trial judge err in finding systemic issues that were not supported by the evidence or not properly raised?
- Did the trial judge misapply the test for a stay of proceedings by disregarding the lack of connection between the assault and the prosecution and rejecting a sentence reduction?
[29] As indicated, I would not give effect to any of these grounds of appeal.
D. Analysis
(1) Did the trial judge err in finding that the officers had colluded?
[30] The Crown acknowledges that it was open to the trial judge to disbelieve the correctional officers but submits that her finding of deliberate collusion was a palpable and overriding error, as the evidence was insufficient to warrant that finding. The Crown points to features in the evidence that should have dissuaded the trial judge from making this finding. There were differences in the Use of Force reports. It was an “undeniable” fact that Mr. Gilmore-Bent made a subtle movement towards Officer Warburton at the cell door. And the location of the pepper spraying at the cell door created the possibility of “inadvertent” error by some of the officers in describing the pepper spraying occurring inside the cell. I am not persuaded. Although there is room for disagreement relating to the trial judge’s findings regarding collusion, the findings she made were supported by evidence and were hers to make. In my view the challenge to her findings represents a request that we retry the issue.
[31] I do not interpret the trial judge as finding that all five of the correctional officers who testified about the pepper spraying colluded when preparing their Use of Force reports. Her ultimate finding was that “several of the officers colluded or at a minimum discussed their reports with other officers with a view to supporting Officer Warburton.” To be sure, it is evident that she found that three of the officers did collude, namely Officers Warburton, Akhtar and Blainey, and she explained her reasoning. All three of these officers described the pepper spraying as occurring within the cell, which the trial judge found to be “obviously wrong”. She was entitled to make this finding and to infer given the obviousness of the mutual error that the inclusion of this detail in all three reports could not be coincidence.
[32] It was also open to the trial judge to accept that the remaining correctional officers discussed their reports with a view to supporting Officer Warburton. Like the three colluding officers, each of them worded their reports in ways that suggested an aggressive movement by Mr. Gilmore-Bent immediately before he was pepper sprayed. On the trial judge’s review of the security video, this was not a reasonable interpretation of the events. She did not disregard Mr. Gilmore-Bent’s subtle movement in arriving at this conclusion. She found it to be no more than an essential movement for him to comply with the direction to get into his cell. Her reasoning also makes clear that she was cognizant of the differences in the reports. I see no basis for interfering with her findings.
(2) Did the trial judge misapprehend Officer Warburton’s use of the term “charging”?
[33] Although the Crown does not identify this as a distinct ground of appeal, it argues that the trial judge misapprehended Officer Warburton’s testimony about Mr. Gilmore-Bent “charging”. In the Crown’s view, Officer Warburton did not use the term to describe Mr. Gilmore-Bent’s movements at the cell door before he was pepper sprayed but used it instead to describe his movements before he approached the cell door. Yet in rejecting Officer Warburton’s evidence the trial judge said, “Officer Warburton testified that Mr. Gilmore-Bent was ‘charging’ towards him, so he deployed the pepper spray” but on a “careful review of the video, Mr. Gilmore-Bent was not ‘charging’ at the officer.”
[34] The evidence supported the trial judge’s interpretation of Officer Warburton’s testimony. The officer did initially use the term “charging” to describe Mr. Gilmore-Bent’s movements when he and Officer Akhtar were placing Inmate B into his cell, a description the trial judge clearly rejected even in that context. But Officer Warburton also repeatedly used the term “charging” to describe Mr. Gilmore-Bent’s conduct just before the officer deployed the pepper spray. Officer Warburton also repeatedly testified that Officer Akhtar put his arm up at the cell door to keep Mr. Gilmore-Bent from “charging” him. When the Crown asked, “And why do you believe he was charging at you?” (emphasis added), Officer Warburton did not say, “He was not charging at me.” He said, “Because he was looking at me at my solar plexus area. He had all the behaviour indicators that he wanted to attack me.” Officer Warburton later explained his state of mind at the time he deployed the pepper spray, saying, “Because I was worried that he was about to attack me, ‘cause he had been told multiple times before to go towards his cell and he was trying to charge at me, from that moment with inmate [B] up until this point” (emphasis added).
[35] Officer Warburton maintained this narrative about Mr. Gilmore-Bent “charging” in cross-examination. He was asked for an example of when it would be appropriate to deploy pepper spray in response to an “uncooperative inmate”. He replied: “When we’re immediately being – in this situation with inmate Gilmore-Bent, when he was charging towards me.” He later described how Mr. Gilmore-Bent was “moving past – trying to go past my partner toward me”. He was then asked, “All right. So, this – this is what you said, he was charging?” Officer Warburton responded “Yes”. I therefore disagree that Officer Warburton used the term only with reference to the period prior to the cell door encounter.
(3) Did the trial judge err in finding that the force was excessive by failing to consider Officer Warburton’s perspective?
[36] The Crown argues that the trial judge erred by focusing on whether Mr. Gilmore-Bent intended to attack Officer Warburton, when she was required to consider whether Officer Warburton reasonably believed that he was about to be attacked. The Crown submits that this failure is demonstrated by the inattention the trial judge gave to the entire context of events, with an inmate punching Officer Warburton in the face in a maximum-security unit less than a minute before, after which Mr. Gilmore-Bent repeatedly closed in, having to be told to get back. The Crown argues, in effect, that not only did the trial judge fail to focus on Officer’s Warburton’s reasonable perspective in these circumstances, but she arrived at an unreasonable decision by failing to give the officer the required allowance for misjudging the degree of force required in the exigency of the moment.
[37] This ground of appeal cannot succeed. On a fair reading of the trial judge’s decision, she fully appreciated that she had to assess the justification for the force based on what Officer Warburton reasonably believed in the context of the entire events. She did not lose sight of the need to see things from Officer Warburton’s perspective in the inflamed, dangerous and fast-moving circumstances. Nor did she focus unduly on Mr. Gilmore-Bent’s intentions rather than the reasonableness of Officer Warburton’s decision to deploy the pepper spray. She came to a reasoned decision that had evidentiary support.
[38] First, the trial judge began her decision by correctly identifying the law of authorized force, explicitly describing the elements of s. 25(1) of the Criminal Code, including its requirement that the justification for force is to be assessed based on reasonable and probable grounds: R. v. Nasogaluak, 2010 SCC 6, [2010] 1 S.C.R. 206, at para. 34. She presented her analysis under the heading, “Was Officer Warburton’s use of Pepper Spray Reasonable?”, and ultimately made an explicit finding that it was not. She approached the issue objectively.
[39] Before undertaking this inquiry, the trial judge twice directed herself to be careful in assessing an officer’s conduct in situations where officers must exercise discretion in dangerous circumstances. She also cautioned herself to consider the circumstances as they existed at the time the force was used. She said explicitly: “In this case the overall circumstances that I have considered include the interaction between the officers and Inmate B that occurs before the incident with Mr. Gilmore-Bent.” She then described the entire event in detail when recounting the evidence, including Mr. Gilmore-Bent’s movements and his readiness to intervene if the officers had beaten Inmate B. She missed none of this.
[40] Contrary to the suggestion that the trial judge failed to give adequate effect to the assault of Officer Warburton by Inmate B, the trial judge in fact relied heavily on this event in assessing Officer Warburton’s state of mind and the reasonableness of his actions. She concluded that not only did this assault “understandably” anger Officer Warburton, but it did so to a degree that caused him to lose control such that his decision to pepper spray Mr. Gilmore-Bent was “borne out of anger, and not reasonable.” Although this is not the use of the assault by Inmate B that the Crown promotes, it demonstrates that the trial judge considered Officer Warburton’s state of mind in the context of that event.
[41] The trial judge’s finding about Officer Warburton’s subjective state of mind also explains why she did not engage in a pointed examination of the objective reasonableness of the degree of force that Officer Warburton used. For force to be justified under s. 25, an officer must subjectively believe that the force they used was necessary, since it is the officer’s belief that must be objectively reasonable: Nasogaluak, at para. 34; Webster v. Wasylyshen, 2007 ABCA 23, 69 Alta L.R. (4th) 205, at para. 26.
[42] Once the trial judge determined that Officer Warburton deployed the pepper spray gratuitously, there was no need for her to continue discussing the reasonableness of the degree of force he used.
[43] Although the trial judge did engage in a detailed examination of what Mr. Gilmore-Bent intended, I do not accept that this shows her focus to have been improper. When Mr. Gilmore-Bent testified, he naturally described his intentions throughout the event. Since his credibility was in issue it is not surprising that the trial judge made findings about his claims. The trial judge also had to interpret Mr. Gilmore-Bent’s movements to assess the reasonableness of Officer Warburton’s reactions. Her findings about what the security videos revealed about Mr. Gilmore-Bent’s intentions throughout were highly relevant in determining whether Officer Warburton reasonably believed that force was necessary.
[44] Finally, I do not find the trial judge’s conclusions to be unreasonable. As I read her decision, the trial judge based her finding that Officer Warburton’s use of force was unreasonable on: (1) an examination of Mr. Gilmore-Bent’s observable movements depicted on the security video throughout the event and immediately before he was sprayed; (2) her finding that Mr. Gilmore-Bent neither looked at Officer Warburton’s chest nor clenched his fists as Officer Warburton claimed; (3) her observation that Mr. Gilmore-Bent was pepper sprayed while exhibiting no apparent sign of aggression, as he was moving as one would expect if he were complying with the direction to get into his cell; (4) her observation that the spraying continued as Mr. Gilmore-Bent retreated into the cell; and (5) her finding that Officer Warburton did not provide a credible explanation of the event and what he was thinking. She found that instead, the officer presented a fabricated account to manufacture perceptions of risk, unreasonably sought to interpret unaggressive movements as an aggressive prelude to an attack, and distorted where and when he deployed the pepper spray to create a falsified pretext for his assault. Her conclusion that Officer Warburton acted out of anger rather than a belief that force was necessary when he sprayed Mr. Gilmore-Bent was supported by other evidence. This included Officer Warburton’s prior deployment of pepper spray into Inmate B’s cell as the cell door was closing, as well as the officer’s movements, body language and gestures both before and after the pepper spray was deployed, and his continued deployment of pepper spray into Mr. Gilmore-Bent’s cell, all captured by the security cameras.
[45] I would reject these grounds of appeal.
(4) Did the trial judge err in finding systemic issues that were not supported by the evidence or not properly raised?
[46] The Crown argued, as stated in its factum, that the trial judge erred in finding “that there is a ‘systemic institutional problem’ resulting in ‘no accountability’ and ‘no oversight’ for use of force that infects the entire ‘culture’ of the [Toronto East Detention Centre]”, when the evidence before her was “confined almost exclusively to the incident itself”. It also argued that her finding that there was a systemic institutional problem infecting the entire detention centre was “unfair” because the Crown was not given advance notice that this issue would be raised, yet the finding proved to be an essential pillar in her decision to stay the proceedings.
[47] Had I read the trial judge’s decision the same way, I would have agreed. The evidence before the trial judge was incapable of supporting a finding there is no accountability or oversight for the use of force in the “entire” Toronto East Detention Centre. The decision would have unfairly tarnished an entire institution, without an evidentiary foundation, and without notice. However, when the trial judge’s decision is read as a whole, it cannot fairly be read this way, notwithstanding that the trial judge occasionally used language that if viewed in isolation could be taken as an indictment of the entire facility. In my view, the systemic issue that the trial judge emphasized and relied upon was the cover-up in this case, which was pleaded in Mr. Gilmore-Bent’s Notice of Application and factum for the application.
[48] A colloquy between counsel and the trial judge during Officer Warburton’s cross-examination undercuts the Crown’s claim that the trial judge made a broad systemic finding without notice to the Crown. When defence counsel began making what struck the trial judge as broad unpled “systemic” claims about the inadequacy of use of force training, the Crown objected, and the trial judge sought to pin down the systemic issue. In arguing that Mr. Gilmore-Bent had not given proper notice that use of force training presented a systemic issue, the Crown conceded that “the only systemic route [defence counsel] has to argue is to suggest the cover-up, as has been alleged”. Defence counsel agreed that the Crown’s position in this regard was fair. This exchange is informative in two respects. First, it includes a Crown concession that the cover-up allegation raised a systemic issue that was properly before the trial judge. Second, this exchange gives context to the comments made by the trial judge in her decision. She was clearly alive to her responsibility to confine the focus of the systemic issues to the cover-up.
[49] In her decision, the trial judge explained why she considered the cover-up to be a systemic issue, commenting that “[i]f Officer Warburton was the only officer to have dishonestly covered up the use of force, this would be an isolated issue.” But she found that several officers were involved in what she concluded were non-coincidental efforts to mislead the court about the events and the report writing, which caused her “great concern”. She then continued:
The misconduct that is at issue in this case is not just the unreasonable use of the pepper spray in Mr. Gilmore-Bent’s face, but the conduct of the officers in the writing of their reports to hide this use of force, misleading this court about that conduct, and finally the culture of complacency at this institution resulting in no accountability for officer misconduct. [Emphasis added.]
[50] The Crown emphasized this last clause in its submissions. I recognize that taken alone, it may appear to be a judgment passed on the entire institution about the lack of accountability for officer misconduct generally. But, read in the context of the entire paragraph and the entire decision it was no more than a comment linked to this event. The trial judge was troubled, and justifiably so, that officers felt safe filling out false Use of Force reports easily contradicted by the security videos, and then providing false testimony, notwithstanding what those security videos showed. She commented that “[t]he seeming ease with which this falsehood was promulgated by not one but three of the officers is disturbing.” She said this was a significant problem with officer conduct and accountability.
[51] Similarly, when she said that “[t]he conduct in this case is not just an isolated incident of an excessive use of force” she was not making a finding without evidence that there were other incidents of excessive force. She was again making the point that the excessive force used by Officer Warburton was not the only misconduct before her. This, too, is plain from the balance of the paragraph, where she continued: “In addition to that, several of the officers then dishonestly filled out use of force reports to justify that use of force.”
[52] The same basic point applies, again, to the final impugned passage in her decision where she said: “The officers’ testimony before this court is also very troubling and I find indicative of a significant problem with officer conduct and accountability.” This was not a finding of problems with officer conduct and accountability throughout the institution, including on other occasions. After making this comment she again put it into the context of the misconduct that was before her by recounting misleading features of that testimony.
[53] And when the trial judge spoke of the loss of public confidence that would occur if the legal and judicial process were to continue, she elaborated in a strictly case-specific way:
The conduct in this case cannot be described as “unwise, unnecessary, inappropriate or improper”. The conduct in this case was wrong, excessive, and dishonest. The conduct in this case, were it to continue, “would continue to trouble the parties and the community as a whole in the future”. [Emphasis added; citations omitted.]
[54] I therefore reject the suggestion that the trial judge erred by manufacturing a broad, institution-wide systemic problem to justify the stay.
(5) Did the trial judge misapply the test for a stay of proceedings by disregarding the lack of connection between the assault and the prosecution and rejecting a sentence reduction?
[55] There are, of course, two alternative bases for finding an abuse of process that may justify a stay: “conduct that compromises trial fairness (‘main category’) and conduct that, without necessarily threatening the fairness of the accused’s trial, nevertheless undermines the integrity of the justice system (‘residual category’)”: R. v. Brunelle, 2024 SCC 3, 488 D.L.R. (4th) 581, at para. 27; R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 31. The trial judge stayed the charges against Mr. Gilmore-Bent for the residual purpose of protecting the integrity of the justice system, even though the misconduct by the correctional officers had no impact on trial fairness. Before doing so, the trial judge accurately set out the test for a stay of proceedings to remedy a Charter violation.
[56] The Crown argues that despite stating the law correctly, the trial judge misapplied the test for a stay of proceedings in two ways. First, she imposed a stay in the absence of the required connection between the misconduct by correctional officers and the prosecution of the case. Second, she contravened the precondition for a stay that confines the remedy to cases where there is no alternative remedy capable of redressing the prejudice. I do not accept either submission.
[57] I agree with the underlying principle relied upon by the Crown in making its first submission. A court cannot stay criminal proceedings because of misconduct unconnected to those proceedings. As O’Bonsawin J. noted in Brunelle, at para. 57, “When there is no connection between the abusive conduct and the proceedings against the accused, the fact that the court disassociates itself from the conduct [by staying the proceeding] will not have the effect of preserving the integrity of the justice system.” However, in my view, the Crown is pursuing an unduly narrow conception of the kind of connection that is required.
[58] It relies heavily on passages from Brunelle, at paras. 39 and 55, that, in discussing the issue of standing, referred to abusive conduct that either arises in the police investigation or operation, or taints the court proceedings. Relatedly, the Crown emphasizes that the misconduct in this case was perpetrated not by the prosecuting Crown or the police, but by prison guards who had custodial charge of Mr. Gilmore-Bent eight months after his arrest, and who had no influence over the trial or its outcome.
[59] The Crown’s submissions do not persuade me that the requisite connection was lacking or that the trial judge failed to consider the strength of that link. It is settled law that abuse by correctional officers can taint pending court proceedings. As the trial judge pointed out, in R. v. Bellusci, 2012 SCC 44, [2012] 2 S.C.R. 509, Fish J., for the Supreme Court, upheld a stay of proceedings of charges after a prison guard provoked and then assaulted the accused while transporting Bellusci between a courthouse and a penitentiary. I would not read Bellusci narrowly as confined to cases where the proceeding arises directly from the incident involving the abuse. In the case at hand, not only were the correctional officers the state agents who were given charge of Mr. Gilmore-Bent pending his trial on the charges before the trial judge, but some of the misconduct by the correctional officers occurred while they were testifying at the trial itself, in a motion properly before the trial judge. The required connection between the misconduct and the proceedings exists.
[60] Indeed, I would caution against taking the kind of narrow approach the Crown promotes in conceptualizing how trials can be tainted by state misconduct. Requiring the misconduct to arise from the manner the case is prosecuted, or the way in which trial evidence is gathered, would shrink the residual category for staying proceedings by largely merging it with the main trial fairness category. As L’Heureux-Dubé J. commented in the seminal decision on remedial Charter stays, R. v. O’Connor, [1995] 4 S.C.R. 411, at para. 73:
The residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness and vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the process. [Emphasis added.]
A narrow approach can only disable the opportunity to use this remedy in “the panoply of diverse and sometimes unforeseeable circumstances” where it may be warranted.
[61] I would also reject the Crown’s attempt to co-opt, in support of its insufficient connection argument, one of the trial judge’s reasons for rejecting a sentence reduction. The trial judge concluded that a sentence reduction would not be a suitable remedy for “the obstruction of justice and false testimony” because such misconduct has no connection to the sentencing exercise. In making this finding the trial judge was not saying that this misconduct was unrelated to the integrity of Mr. Gilmore-Bent’s prosecution. She was making the salient point that to properly mitigate sentence, a Charter breach must “bear the necessary connection to the sentencing exercise”: Nasogaluak, at para. 48; R. v. Claros, 2019 ONCA 626, at para. 71. I see no error in the trial judge’s conclusion that the obstruction of justice and false testimony were not appropriately remedied by a sentence reduction. Nor does her finding on this point assist the Crown theory that the connection between the misconduct and the trial was insufficient to warrant a stay.
[62] I am also unpersuaded by the Crown’s alternative submission that the trial judge failed to respect the “no alternative remedy” component of the test for a stay by ruling out a sentence reduction. The trial judge fully understood the “no alternative” requirement. She described it, considered it, and found that a sentencing reduction was not an available alternative remedy, not only for the reason I have just described, but also because Mr. Gilmore-Bent had already spent so long in custody pending his trial that he was liable to receive a sentence equivalent to time-served, without any such reduction. This conclusion was available to her.
E. Conclusion
[63] I would dismiss the Crown’s appeal.
Released: July 24, 2025
“J.M.F.”
“David M. Paciocco J.A.”
“I agree. Fairburn A.C.J.O.”
“I agree. A. Harvison Young J.A.”